Your Soapbox is My Soapbox! Thoughts on the Media Access Movement in General and the Media & Democracy Coalition’s “Bill of Media Rights” in Particular

Imagine you built a platform in your backyard for the purpose of informing or entertaining your friends of neighbors. Now further imagine that you are actually fairly good at what you do and manage to attract and retain a large audience. Then one day, a few hecklers come to hear you speak on your platform. They shout about how it’s unfair that you have attracted so many people to hear you speak on your soapbox and they demand access to your platform for a certain amount of time each day. They rationalize this by arguing that it is THEIR rights as listeners that are really important, not YOUR rights as a speaker or the owner of the soapbox.

That sort of scenario could never happen in America, right? Sadly, it’s been the way media law has operated for several decades in this country. This twisted “media access” philosophy has been employed by federal lawmakers and numerous special interest groups to justify extensive and massively unjust regime of media regulation and speech redistributionism. And it’s still at work today.

Take, for example, the announcement made yesterday by a coalition of interests billing themselves as the “Media & Democracy Coalition” who released a “Media Bill of Rights.” Hey, who could be against media and democracy? And who could be against a media “Bill of Rights”? Well, let’s take a closer look at what they’re after before we let them get away with equating their efforts to Mom, baseball and apple pie.

Denigrating the Real Bill of Rights Once Again

The thing that really ticks me off about this Media Bill of Rights–and, for that matter, almost all modern legislation claiming to be a “consumer bill of rights” of one variety or another–is that it has almost nothing in common with the Founding Fathers’ original Bill of Rights. Indeed, recent “Bill of Rights” proposals are a slap in the face of the Founders’ original 10, which helped secure our genuine human rights against government interference. None of the rights found in the original 10 required that the government take the property of others or extensively regulate human affairs and commerce to accomplish the stated objective.

Proposals like the Media Bill of Rights, by contrast, are really just a Bill of Regulations that invite more government activism and intrusion into the lives of the people and the economy. Why not a “Clean Gas Station Bathroom Bill of Rights” and a “Speedy Restaurant Service Bill of Rights” while we’re at it? Such proposals assume we have a God-given right to things we have no right to whatsoever. Congress would be wise to spend less time penning new “Bill of Rights” proposals and start doing more to honor and restore the Founders’ original 10.

Anyway, the “Media Bill of Regulations,”… er, uh… “Media Bill of Rights,” I mean, sets forth yet another wish list of make-believe “rights” that the government should magically concoct. Let’s take a closer look at some of the “rights” that this document says we should all have:

“The American public has a right to newspapers, television and radio stations, cable and satellite systems, and broadcast and cable networks operated by multiple, diverse, and independent owners that compete vigorously and employ a diverse workforce.”

“The American public has a right to radio and television programming produced by independent creators that is original, challenging, controversial, and diverse.”

“The American public has a right to programming, stories, and speech produced by communities.”

“The American public has a right to electoral and civic, children’s, educational, independently produced, local and community programming, as well as programming that serves Americans with disabilities and underserved communities.”

“The American public has a right to media that reflect the presence and voices of people of color, women, labor, immigrants, Americans with disabilities, and other communities often underrepresented.”

“The American public has a right to maximum access and opportunity to use the public airwaves and spectrum.

“The American public has a right to television and radio stations that are locally owned and operated, reflective of and responsible to the diverse communities they serve, and able to respond quickly to local emergencies.”

“The American public has a right to Internet service provided by multiple, independent providers who compete vigorously and offer access to the entire Internet over a broadband connection, with freedom to attach within the home any legal device to the net connection and run any legal application.”

“The American public has a right to universal, affordable Internet access for news, education, and government information, so that the public can better participate in our democracy and culture.”

Wow, who knew we had so many rights! While we’re at it, why not throw in free HDTVs, free i-Pods, free PDAs, free TiVos, and a lot of other media gadgets into the techno-entitlement mix. And to think that this is all justified by the First Amendment!

Will the Real First Amendment Please Stand Up

OK, now let’s talk about the real First Amendment. You remember, it’s the one that said “Congress shall make no law… abridging the freedom of speech, or of the press…” Fourteen simple, beautiful words. It did not contain any footnotes or caveats listing any of the “rights” suggested above. That’s because the First Amendment was not written as a constraint on private speech or actions, but rather as a direct restraint on government actions as they relate to speech. “[T]he First Amendment does not guarantee a fair press, only a free press,” argued former FCC Chairman Dennis Patrick in his concurring opinion overturning the Fairness Doctrine in 1987.

Moreover, the First Amendment does not serve as an affirmative grant of access to privately owned media. As Jonathan Emord, author of the brilliant Freedom, Technology and the First Amendment, notes: “The First Amendment does not require any set amount of diversity in the marketplace. If everyone were to choose to remain silent, the First Amendment would not be violated, for the amendment’s purpose is to deprive government of a power over the press and to leave to private citizens the decision of when to speak or not to speak and what to say.” (p. 228)

But let’s dig a little deeper and explore media access theory. Where did this increasingly prevalent, but wholly unsubstantiated, interpretation of the First Amendment come from? There were many FCC decisions and a handful of Supreme Court cases that pushed things in this direction long ago. The media access doctrine gained legitimacy from Supreme Court’s decisions such as NBC v. United States (1943), Associated Press v. U.S. (1945), and Red Lion Broadcasting Co. v. FCC (1969), which rested on the assumption that broadcast media was scarce and therefore, could be regulated differently than print outlets (like newspapers and magazines).

Specifically, in these cases, “scarcity” came to justify federal censorship efforts on one hand and media access mandates on the other. (The dirty little secret that the Lefties in the media access movement do not like to acknowledge is that their push to enshrine media access mandates into law has also opened the door to a host of repressive speech controls for broadcast TV and radio operators. They like to pretend that media access mandates and speech controls do not work hand-in-hand, but they most certainly do. Indeed, the regulation of media architecture has an important bearing on freedom of speech. If government can control the soapbox, it can control the speech delivered from that soapbox.).

In the wake of Red Lion, which was the high-water mark of the media access movement, the media access doctrine and was then broadened into a far more wide-ranging legal theory by George Washington University law professor Jerome A. Barron in a 1967 Harvard Law Review article entitled “Access to the Press–a New First Amendment Right.”

Barron actually wanted to apply all this thinking to newspaper and magazines too, but was shot down by the Supreme Court just a few years after Red Lion in the case of Miami Herald v. Tornillo (1974). He even argued the case before the Court by his effort to extend media access mandates to papers was resoundingly rejected by the judges. (The Court said: “The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. “)

Regardless, the title of Barron’s 1967 essay really said it all–he was proposing the creation of “a new right” that did not find any support in a strict reading of the First Amendment. Yale University law professor Owen Fiss has endorsed Barron’s reading of the First Amendment and shows how extreme this “media access” thinking can be. Fiss argues that a proper reading of the First Amendment requires “a change in our attitude about the state” such that we learn “to recognize the state not only as an enemy, but also as a friend of speech… [that should act] to enhance the quality of public debate.” (Iowa Law Review, Vol. 71, 1986, p. 1416).

“What is more, when on occasions it fails to, we can with confidence demand that the state so act,” he argues. “The duty of the state is to preserve the integrity of public debate… to safeguard the conditions for true and free collective self-determination. It should constantly act to correct the skew of social structure… ”

This is a truly radical conception of the First Amendment; radical not only in how much it diverts from the Founders’ original understanding and intent, but radical also in the sweeping scope of government intervention it counsels for our society. Contrary to Fiss’s assertion that the state is “[just] like any social actor,” it is not. The state has coercive powers that no other social actor possesses. It can deny us our liberties, take our property, and imprison us. No other social actor wields such power over the citizenry. And that power was so feared by the Founders that they made it clear “Congress shall make no law… abridging the freedom of speech, or of the press…” The Founders did not then continue on to say “except to preserve the integrity of public debate,” or “except to safeguard the conditions for true and free collective self-determination,” or “except to correct the skew of social structure.” It is hard to understand what these terms even mean. But it is not hard to understand the plain language of the original Bill of Rights, and it says nothing along the lines of what Fiss or Barron suggest. Their conception of the First Amendment and government’s role as a private speech referee is pure jurisprudential fantasy built upon eloquent, but ultimately empty and indefensible, rhetoric.

What is most troubling about such media access theories is that they presume the existence of a mythical “right to be heard,” or a “right to respond publicly.” In essence, media access advocates are arguing that once a given media provider becomes popular enough, everyone has a “right” to use it. Again, by this logic, if you build a large soapbox in your backyard, and are informative or entertaining enough to attract and retain an audience, the media access advocates apparently believe that the government should mandate that you share time on your soapbox with others in the name of “diversity.” They care little about the property rights you have in that soapbox, the effort and cost associated with your efforts to build that soapbox, or your editorial freedom to determine what is uttered on that soapbox. As Emord summarizes:

“In short, the access advocates have transformed the marketplace of ideas from a laissez-faire model to a state-control model. For them, if the marketplace of ideas can be viewed as the contents of a cauldron, it is not enough to await random stirring; government must burn an eternal flame beneath the cauldron, keeping it at the boiling point. Silence is not an option; the government implores: Let there be speech!” (p. 293)

While citizens certainly are at liberty to speak freely and communicate their views to others who will listen to them or air them, they do not have a right to demand access to the property of others to do so. If lawmakers could mandate that anyone who has taken the time and expense to build a soapbox to speak on must allow the rest of the world to stand on that soapbox with them in the name of “access” and “fairness,” it would contort the First Amendment into a tyrannical government mandate. This would retard, not expand, genuine freedom of speech and expression. Indeed, when such media access theories have been translated into public policy–as was the case with the Fairness Doctrine–the effect has been generally to chill speech and expression throughout media.

What is really going on here is that media access advocates are looking to transform the First Amendment into a tool for social change to advance specific political ends or ideological objectives. “Rather than understanding the First Amendment to be a guardian of the private sphere of communication, the access advocates interpret it to be a guarantee of a preferred mix of ideological viewpoints,” notes Emord. “When the access advocates speak of minority views, they are almost always referring to views they believe to be inadequately represented in our society.”

Thus, the danger with media access mandates is that they ultimately transform the First Amendment into an affirmative tool of the state that legislators and regulators can wield to control content and influence the editorial judgments of the press. As Justice Owen Roberts presciently warned 50 years ago in his dissenting opinion in Associated Press v. U.S, the case that helped spawn the media access movement:

“The decree here approved may well be, and I think threatens to be, but a first step in the shackling of the press, which will subvert the constitutional freedom to print or to withhold, to print as and how one’s reason or one’s interest dictates. When that time comes, the state will be supreme and freedom of the state will have superseded freedom of the individual to print, being responsible before the law for abuse of the high privilege. It is not protecting a freedom but confining it to prescribe where and how and under what conditions one must impart the literary product of his thought and research. This is fettering the press, not striking off its chains.” (p. 48 of decision).

But Hey, “The People” Own the Airwaves, So That Makes All This OK, Right?

In the paper, author John Beresford, an attorney with the FCC’s Media Bureau, lays out a devastating case against the Scarcity Rationale, which has governed spectrum and broadcast regulation in the United States for over seven decades. Calling the Scarcity Rationale “outmoded” and “based on fundamental misunderstandings of physics and economics,” Beresford goes on to show why just about everything the FCC every justified on this basis was misguided and unjust. In particular, he addresses the “People’s Airwaves” argument and his thoughts are worth quoting at length:

“The premise is incorrect. No law states that the airwaves… are owned by ‘The People.’… Moreover, The People’s Airwaves Rationale is a dubious basis for the kinds of regulation [that have traditionally governed broadcasting]. Even if the federal government did own the radio spectrum, that alone should not grant the federal government the kinds of regulatory powers [it has traditionally exercised over broadcasting]. The United States Postal Service is part of the federal government, but is not therefore allowed to license persons before they may send mail or, short of obscenity, regulate the words they write. Most likely, some newspapers and musical instruments are made from trees that grew on government land. No one would claim that they are therefore made of The People’s Wood and that the federal government may regulate the content of those newspapers or require that the music played on the instruments address controversial public issues and express differing views. Residents of government housing and employees of public universities do not, because they use public resources, lose their First Amendment rights. Local governments, for their part, control the roads and sidewalks on which newspapers are delivered and sold, but local governments are not therefore authorized to regulate newspapers. Indeed, in granting access to public forums such as sidewalks and parks, the Constitution carefully limits government officials’ right to prefer some speakers and some messages over others. Finally, even if the airwaves did belong to the people, the same cannot be said of traditional broadcasters’ land, transmitters, buildings, studio equipment, personnel, and audiences gained through years of sending out popular content. Those things belong exclusively to the broadcasters and their shareholders. Thus, The People’s Airwaves Rationale is both incorrect as a matter of law and illusory as a rational basis for the kinds of regulation [that have traditionally governed broadcasting].”

Again, this is a legal counsel with the FCC talking here, not me. It’s safe to say that when the regulatory agency that is suppose to be enforcing media access mandates is admitting that the philosophical underpinnings of its regulatory regime are morally bankrupt, that philosophy really has no good leg left on which to stand.

Importantly, even if there was anything to the “People’s Airwaves” argument, what difference would it really make in a world were broadcast over-the-air television and radio are now merely just a few more options in our proverbial 500-channel universe? If you want to know how much the world has changed in this regard, just ask a teenager what the difference between “cable” and “broadcasting” is. You’ll get a blank stare. The next generation doesn’t give a damn how its video signals get delivered and they already don’t acknowledge any difference between what’s on Channel 4 versus Channel 40 versus Channel 400.

As a practical and technological matter, therefore, there are good reasons to think that traditional broadcast channels will in the future just all be carried by cable, satellite, and telephone companies once those operators have enough bandwidth to carry all those signals. And they are already pretty close to having that ability. 85 percent of all homes already voluntarily subscribe to cable or satellite TV, and very soon that number will likely push up over 90 percent as bandwidth continues to grow. Verizon has already offered, for example, to carry ALL local broadcast signals–including new digital multicast signals–on their new fiber lines to the home.

As this scenario unfolds, the broadcasters will be able to convert their old spectrum to some other use. Who knows what that use will be (wireless broadband, perhaps?), but the point is that once that takes place, there will certainly no longer be any sort of “People’s Airwaves” argument left for the media access crowd to rely on. In that case, they are left arguing for media access mandates to apply to outlets and technologies that are very clearly private property: cable systems, satellite networks, other wireless networks, and the Internet. More on this horrifying scenario below. But first, a digression about mistaken “Big Brother” assumptions that we also hear in this debate.

Understanding the Real Big Brother Problem

Still, some (like those in this new “Media & Democracy” coalition) will argue that private media operators will exert undue influence on private speech and somehow silence dissenting viewpoints and stifle diversity.

The argument that private restraints on speech are as dangerous as government restraints on speech is absurd. Critics are fond of painting conspiratorial “puppet-master” pictures of the way the modern media marketplace operates. When they do so, a recurring theme is that private media owners are routinely engaged in journalistic cover-ups, private censorship, or effort to stifle dissenting viewpoints. In their view, private media owners are the real Big Brother threat to free speech in our republic.

This is exactly backwards. Again, the real “Big Brother” censorship problem is coercive government controls, not private media actions. Media access proponents would do well to remember law professor Louis Jaffe’s quip: “If one private person suppresses a fact, there are many others who may publish. Not so if the government forbids!” (Virginia Law Review, Vol 57, 1971, p. 636). Indeed, there is a profound difference between private and public censorship, and only one of them is addressed directly by the First Amendment. Citizens are always at liberty to seek out alternative media distribution methods if they feel they cannot obtain the information they desire, or believe they cannot get their viewpoints aired by a certain media outlet. There is simply no way for a single private entity, or even a collection of large entities, to monopolize the dissemination of information.

And just because a critic might be able to cite one example of a media outlet supposedly censoring a particular story or viewpoint, that hardly means widespread private suppression of speech is at work. Indeed, all decisions about what to report in a given media outlet inherently involve editorial discretion and an endless series of judgment calls about what constitutes “news.” As Duke University law professor David Lange aptly notes, “Private suppression unquestionably exists; the very essence of the editorial function is to decide what shall be published. But to acknowledge this fact is not to diminish the larger reality: all power to affect the content of the press is of necessity the power to suppress as well as to publish.” (North Carolina Law Review, Vol. 52, No. 1, 1973, p. 73-4)

Finally, there is a more practical issue to take into account here regarding the enforcement of media access mandates. Namely, media outlets simply cannot guarantee time or space to everyone who wants speak. Stated differently, all news decisions involve trade-offs: Should they have run this story or that one? Should they have covered that event or another? Should they have shown more programming with this particular point of view or something else? These are private editorial judgments for editors and reporters to carry out. Under the alternative scheme envisioned by the “media access” proponents, the government would be entrusted with a “supereditorial authority over speech and press,” (Emord, p. 463) since the state would have the final say over what constitutes “fair” coverage of the issues and “access” to media. As Emord correctly concludes, “It fundamentally shifts the marketplace of ideas from its private, unregulated, and interactive context to one within the compass of state control, making the marketplace ultimately responsible to government for determinations as to the choice of content expressed.” Again, such a result would be completely at odds with a proper understanding of the First Amendment.

Will All This Media Access Regulation Apply to New Media?

In sum, “media access” mandates do not flow from the First Amendment; they are squarely contradicted by the plain language of the amendment. “Congress shall make no law” means Congress shall make no law. It does not stand for any of the other bogus propositions the media access proponents suggest. As this latest “Media Bill of Rights” effort illustrates, however, the danger remains very real that such thinking will not only continue to influence the debate over traditional media policy, but gradually extend to new media technologies and outlets as well.

After all, we now live in a world of media convergence where all media outlets and technologies are rapidly coming together in one big bucket of bits. Bits of digital information now flow over dozens of devices to get consumers. How those bits are transmitted–via the Internet, broadcast airwaves, cable, satellite, cell phones, PDAs, i-Pods, etc.–should really have no bearing on the First Amendment protections they receive. ALL media should be treated equally in the eyes of the First Amendment and ALL media should receive the gold standard of First Amendment protection.

If the opposite is going to be the case, then you have to ask yourself how comfortable you are with all these “media access” mandates and regulations being imposed on the Internet as well as newspapers. Remember, the ironic (and quite strange) thing about First Amendment law in America today is that the oldest and newest media distribution outlets and technologies (newspapers and the Internet) receive the gold standard of First Amendment protection (including complete freedom from media access mandates), while the technologies that have come in between them (broadcast TV & radio and to some extent cable) have received lesser First Amendment freedoms (and had media access mandates shoved down their throats as a result).

So, in a world in which all media is coming together, the threat is very real that if something along the lines of the “Media Bill of Rights” gets on the books, it will eventually be applied to newspapers and the Internet. If you don’t believe me, take a look at Cass Sunstein new book Republic.com, in which he suggests that government should consider requiring “electronic sidewalks” in cyberspace to encourage more balance on Internet websites. The state would impose the equivalent of “must carry” mandates on popular or partisan websites, forcing them to carry links to opposing viewpoints. (See pg. 189 of Republic.com). In the name of “media access” or “fairness,” Sunstein and others are apparently willing to let the state impose tyrannical mandates on private website operators, forcing them to open their private property to use by others. Essentially it’s a Fairness Doctrine for the Internet Age.

Conclusion: Toward Media Freedom

Which brings us full circle to where we began with my little story about building a soapbox in your backyard and then having somebody demand access to it. In today’s amazingly diverse and hyper-competitive media marketplace, citizens finally do have the ability to build their own soapbox and speak to the world. For very little investment, anyone today can start their own newsletter or Internet site and distribute it far and wide. Will anyone listen to us when we do so? If we are entertaining or informative enough, they just might. Think of Matt Drudge. Think of the countless bloggers and the Podcasters. Think of the self-help groups, they hobbyist websites, the endless sources of news from every corner of the globe. And so on, and so on.

In sum, the Internet and new electronic media outlets and technologies offer humans the most dynamic, democratic and egalitarian media resource in the history of the world. The folks in the “Media & Democracy Coalition” will likely scoff at that and argue that the bigger media outlets or networks still pull in 75% of the ratings or readership. Geez, could that not be because they are popular and actually offer the vast majority of the public exactly what they want?!

Nah, they say. The American people want what WE want and what WE want is something different that what we see on networks or outlets that WE don’t control. That’s why, so they say, it is so important that the government give US control over more of the decisions about media in this country. You see, WE are the enlightened ones who will tell the rest of your ignorant runts what you really need to read, see, or hear. And it all begins by giving US just a little more say over how media is regulated in this country.

This arrogant, elitist, anti-property, anti-freedom ethic is what drives the media access movement and makes it so morally repugnant. Freedom doesn’t begin by fettering the press with more chains, it begins by removing those that already exist and then erecting a firm wall between State and Press. The media access crowd has succeeded in breaching that wall with seven decades of misguided and unjust regulation of the press. The movement back toward a truly free press begins by understanding the error in their thinking, rejecting that reasoning, and then embracing, once again, the original vision of the First Amendment as a bulwark against government control of speech and the press.

– – – – – –Endnote: If you are interesting in reading more about this issue, please see Chapter 6 (“The First Amendment and Media Access Theory”) of my forthcoming book, Media Myths: Making Sense of the Debate over Media Ownership. (forthcoming, Progress & Freedom Foundation, June 2005). I’m also planning a longer paper on “The Rise and Fall of the Media Access Theory.”

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Adam Thierer / Adam is a senior research fellow at the Mercatus Center at George Mason University. He previously served as President of the Progress & Freedom Foundation, Director of Telecom. Studies at the Cato Institute, and Fellow in Economic Policy at the Heritage Foundation.